The NEW NORM
Chapter twenty four
THE NEW NORM understands the complexity of workplace mental health issues
Paul Lane was hired by ADGA Group Consultants as a software program tester. The company was developing software for the Department of National Defence to test NATO-developed software. He signed a contract stating he could be fired for any reason within the first ninety days of work.
Two days into the job, he told his manager that she should call him on any strange behaviour he might exhibit, and warned her that any negative attention or abuse others gave him could stress him. Two days after that, he told his manager that he had bipolar 1 disorder, and might need to take time off if things got too stressful. He added that she should call his wife or doctor if he exhibited certain behaviours.
Although this manager agreed to keep the information confidential, Lane sensed that the discussion had not gone over well, and started exhibiting pre-manic behaviours. His manager was concerned enough to speak to her boss about it. As a result, management, deciding that Lane’s mental health issues were a workplace risk, fired Lane eight days after he began work.
Immediately after that, Lane went into mania, then depression, with devastating results that involved hospitalization, loss of employment for years, the sale of his home due to finances and the break-up of his marriage. Lane took ADGA to the Ontario Human Rights Commission, claiming discrimination based on a mental disability.
Letting an employee go during a probationary period is common, and most employers are protected from successful lawsuits for such action. But as we already know from Chapter Fourteen, human rights usually prevails when it comes into conflict with something like a probationary period.
The Supreme Court of Canada has stated that if a person’s human right is violated, the employer must accommodate them to the point of “undue hardship.” So in this case, would continuing to employ Lane have been an “undue hardship” on the company?
If this employer had taken my Respectful Workplace online course, they would have realized workplace accommodations are an important part of preventing discrimination based on disability, including employees with mental health issues.
Almost four years after Lane was hired and fired, human rights proceedings on his case took place in Ottawa. There were fourteen days of hearings spanning eight months. More than a year and a half later, the Ontario human rights adjudicator ruled in favour of Paul Lane. It was a lesson in what not to do, and what not to assume, when it comes to employing persons with mental disabilities.
The adjudicator noted that a) Lane’s direct manager, Miranda Corbett, had looked up bipolar disorder on the Mayo Clinic website before talking to her boss and b) that before firing Lane, no one at the company had looked into Lane’s capabilities or potential.
The adjudicator wrote, “The procedural dimensions of the duty to accommodate required those responsible to engage in a fuller exploration of the nature of bipolar disorder, Mr. Lane's own situation as a victim of bipolar disorder, and to form a better informed prognosis of the likely impact of his condition in the workplace.”
He felt the little consideration they gave to whether Corbett could monitor his work “scarcely amounts to an appropriate evaluation of the prospects of effective workplace monitoring.”
He wrote further, “Given the hopes that Mr. Lane had built up about the prospects of returning to work and his excitement about the kind of work and environment at ADGA, the summary way in which he was dealt with amounted to a huge affront to his sense of self-worth.
This was exacerbated by the fact that the principal decision-maker and his advisors had little or no awareness of the difficulties faced by those with disabilities or of their own legal responsibilities under the [Human Rights] Code.”
After describing the company’s behaviour as “callous,” he wrote, “This was a serious violation of Mr. Lane's right to be free from discrimination by an otherwise sophisticated employer that had every reason to know better.”
In addition to its own legal costs, the company was ordered to pay Paul Lane more than $80,000 (including $35,000 for violation of his rights, $10,000 for reckless infliction of mental anguish and $34,279 for loss of salary and interest dating back to the time of the complaint). When the case was appealed to the Ontario Superior Court of Justice, the three judges ruled in Lane’s favour and did not alter the financial penalty.
The OLD NORM
- expects everyone to be free of mental health issues and disabilities.
- relies on a probationary period to ensure she can get rid of an employee, regardless of the circumstances.
- as is commonly said, “sees the disability, not the ability” of persons working for, or hoping to work for the organization.
- doesn’t ask the person with mental health issues what he is capable of doing.
The NEW NORM
- knows a significant percentage of the Canadian population deals with mental illness or disabilities.
- wants to hire the best employees, some of whom will have a mental illness.
- will give an employee or potential employee with a mental illness every opportunity to see if she can work, without causing the company “undue hardship.”
- will ask questions instead of relying on stereotypes regarding persons with mental health issues.
Suggestions for the New Norm:
01
Get to know more about mental illness. According to the Canadian Mental Health Association, “twenty percent of Canadians will personally experience a mental illness in their lifetime.” With so many people affected, it seems weird there is any stigma. But since mental illness still brings up negative thoughts, it’s up to us (especially managers) to get to know more about various mental health issues and disabilities.
02
Talk about mental illness. Years ago, a doctor was about to do a series of tests to find out if the pains I was feeling in my leg amounted to multiple sclerosis. With the best of intentions, he closed his door and said, “Don’t tell anyone about even these tests.” As it turned out, I don’t have M.S., but at first I heeded his advice…until I realized I was helping to perpetuate the stigma of having M.S., a disorder many Canadians have. The same is true of mental illness. Anyone willing to talk about it shouldn’t shy away from doing so, and the rest of us should listen. It’s the best way to let all Canadians be part of the cultural and employment fabric.
03
Try. If, due to any disability, an employee can’t do the work, then at least you tried.
This chapter lets you know there are very strict laws requiring employers to accommodate employees with mental health issues. For another example where employers need to understand workplace accommodations, based on family status, consider reading
Chapter 15: The New Norm helps employees work with difficult family responsibilities.
Purchase a copy of The New Norm, or if you think all your supervisors and managers, could learn many valuable lessons about creating a respectful workplace, free of harassment, bullying and discrimination, you can get volume discounts.
What one reader has to say about Stephen’s book, The New Norm
“Stephen Hammond’s book, ‘The New Norm’ is easy to follow and full of common sense. I loved the real case examples, older ones that stand the test of time and new ones that are relevant in the ever-changing landscape of the work environment. He categorizes behaviour as it was and as it should be - what every employer should strive for.”
Jackie Gruber, Human Rights and Conflict Management Officer
University of Manitoba
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Stephen Hammond is a lawyer turned speaker and consultant in the field of harassment, sexual harassment, bullying and discrimination at work.
The New Norm is Stephen’s third book.
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